European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF SAMSONOV v. RUSSIA

(Application no. 38427/11)

 

 

 

 

 

JUDGMENT

STRASBOURG

9 June 2020

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Samsonov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Helen Keller, President,
          María Elósegui,
          Ana Maria Guerra Martins, judges,
and Olga Chernishova, Deputy Section Registrar,

Having deliberated in private on 5 May 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 38427/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Artem Anatolyevich Samsonov (“the applicant”), on 30 March 2011.

2.  The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3.  On 30 August 2017 the Government were given notice of the application.

4.  The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1974 and lives in Vladivostok.

6.  On 10 November 2010 another person (probably, the applicant’s relative) created a topic in the forum section of an Internet site dedicated to various matters about cars. The topic was entitled “Four years’ imprisonment for instrumental music in South Korea”. It read as follows:

“The Supreme Court of South Korea upheld the conviction for which Song was sentenced to four years’ imprisonment for possession of fourteen MP3 files containing music such as North Korea’s hymns and marches.

The South Korean authorities closely control and punish any attempts to disseminate any North Korean material that glorifies it or attempts to have unlawful contact with the opponents in the Cold War. Those who violate the law risk long prison terms.

In August 2010 South Korea blocked its citizens’ access to the Uriminzok (“Our People”) Twitter account, which is controlled by the North Korean authorities ... [hyperlink to an online newspaper article]”

The post ended with the creator of the topic (“original poster”) asking:

“Friends, I am just shocked. How can we help her?”

7.  On 10 and 11 November 2010 the original poster and various other people posted comments or conversations, either directly in reply to the above post or as replies to other comments. In the discussion relating to the question raised by the original poster, some participants suggested complaining to or seeking clarifications from the “Korean Cultural Centre”. One user (using smileys and apparently jokingly) wrote “Let’s take our pitchforks and torches to the Consulate!! To defend ‘our people’)))”.

8.  The applicant participated in the discussion and wrote several posts.

(a) On 11 November 2010, in response to a post saying “So when do we gather in front of the Korean Consulate with banners?”, the applicant wrote “At 6 p.m. on 15 November, in front of the Korean Consulate, at 19 Pologaya Street”.

(b)  Another user wrote “I would like to go and ‘protest’ in favour of North Korea ...”. The applicant replied “Come on Monday”.

(c)  Another user wrote a post addressing the original poster: “... Look, maybe it would be a good idea for you to organise a picket in front of the Korean Consulate, for instance?”. The applicant replied “We are working on it. Come on Monday at 6 p.m.”.

9.  On 12 November 2010 three people (other than the original poster and the applicant) notified the Vladivostok City Administration of their intention to hold a static demonstration on 15 November 2010 in front of the Consulate of South Korea in Vladivostok to protest against human-rights violations in the country. They were told that the notification had to be submitted to the regional administration instead, given the location of the event and that the event was planned to take place next to a government building, namely the Regional Office of the Federal Agency for State Property Management.

10.  The demonstration was held as planned on 15 November 2010.

11.  The applicant’s posts and conversations in the topic of the forum were spotted by an officer from the local anti-extremism unit.

12.  The applicant was then prosecuted, it appears, in relation to his post on 11 November 2010 (see under (a) in paragraph 8 above).

13.  By a judgment of 3 February 2011 a justice of the peace convicted the applicant under Article 20.2 § 1 of the Code of Administrative Offences (CAO) and fined him 1,000 Russian roubles (some 30 euros at the time). The court considered that he had been the event organiser, and that as such he had not been permitted to lawfully engage in any pre-event campaigning prior to formally notifying the local authority of the planned event.

14.  The applicant appealed, arguing that his posts amounted to a discussion of various political views and future plans. His posts did not amount to “campaigning” since they had not indicated or explained the aims of a specific public event or other information relating to the organisation or running of a specific public event. His posts were indistinguishable from an ordinary conversation that two or more people might have on the street. His prosecution therefore constituted an unjustified interference with his freedom of expression and violated Article 10 of the Convention.

15.  On 16 March 2011 the Frunzenskiy District Court of Vladivostok upheld the judgment. The court specified that the applicant’s post on 11 November 2010 (see under (a) in paragraph 8 above) had indicated the specific date, time and venue of a public event and thus amounted to unlawful pre-event campaigning in the absence of any pending notification of the event (sections 4 and 10 of the Public Events Act). The notification of a static demonstration had not been lodged with the Vladivostok City Administration until 12 November 2010.

II. RELEVANT DOMESTIC LAW AND PRACTICE

16.  Section 4 of the Public Events Act defines “organisation” of a public event as, inter alia, providing information to potential participants, notifying the competent public authority and pre-event campaigning.

17.  At the material time, section 10 of the Public Events Act provided that once notification of a public event had been given, the event organiser or other people could engage in pre-event campaigning, such as informing others of the venue(s), timing, objectives or other aspects pertaining to the preparation and running of the upcoming event, and calling on citizens to take part.

18.  This section was amended in June 2012 to indicate that pre-event campaigning could be carried out once the competent public authority had approved the venue(s) and/or timing of the public event.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLES 10 and 11 OF THE CONVENTION

19.  The applicant complained that his conviction for an administrative offence for organising a public event by calling on the public to participate in it had breached his right to freedom of expression. He relied on Articles 10 and 11 of the Convention. The Court considers that the complaint falls to be examined under Article 10, interpreted where appropriate in the light of Article 11. Article 10 reads as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A.    Admissibility

20.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions

21.  The Government submitted that the domestic regulatory framework relating to organising and running public events was aimed at ensuring order and public safety while avoiding any damage to the health of others or an affront to public morals. The domestic framework provided for adequate measures to be taken in order to prevent or put an end to instances of public disorder or violations of the rights of others. The Public Events Act provided for the notification procedure for public events, with the aims of protecting order and national security. Pre-event campaigning was considered part of the procedure for organising a public event. The domestic courts had rightly considered that the applicant’s post indicating the timing and the venue for a public event had amounted to premature (and thus unlawful) campaigning.

22.  The applicant argued that while section 10 of the Public Events Act regulated pre-event campaigning after notifying the competent authority of a planned event, the Act contained no explicit ban on campaigning before such notification. Nor did it regulate specifically the provision of information to prospective participants about one’s wish to organise a public event. All the applicant had done was to provide some preliminary information about plans to organise a public event. Notification had then been lodged promptly; the event had been held without any claim from the police or another authority and without any harmful consequences to anyone. In that context his subsequent prosecution for an administrative offence had not been “necessary in a democratic society”.

2.    The Court’s assessment

23.  It has not been disputed between the parties that the applicant’s conviction for an administrative offence under Article 20.2 of the CAO amounted to an interference with his right to freedom of expression interpreted in the light of his right to freedom of assembly. Such interference will constitute a breach of Article 10 of the Convention unless it is “prescribed by law”, sought to pursue one or more of the legitimate aims referred to in Article 10 § 2 and was “necessary in a democratic society” to achieve those aims. The Court considers that in the present case, the questions of compliance with the law and of the existence of a legitimate aim cannot be dissociated from the question of whether the interference was “necessary in a democratic society” (see, for similar reasoning, Elvira Dmitriyeva v. Russia, nos. 60921/17 and 7202/18, § 77, 30 April 2019).

24.  The applicant was convicted with reference to section 10 of the Public Events Act which allowed “pre-event campaigning” after notifying the competent authority of the public event. In 2012 section 10 was amended so that it became lawful to campaign after the authority’s approval of the event. As the Court noted in Elvira Dmitriyeva (cited above, § 79), in a 2013 ruling the Constitutional Court of Russia stated that as amended section 10 prohibited premature “campaigning” - that is calling on people to participate - only, and did not prohibit “informing” prospective participants of the aims, type, location, timing and estimated number of participants before an event was approved by the authorities. When holding organisers liable for a breach of the requirements of section 10 (as amended in 2012), the domestic courts are accordingly required to make a distinction between “informing” and “campaigning”, as only the latter is punishable under Article 20.2 of the CAO.

25.  It appears from the appeal decision in the applicant’s CAO case that he was prosecuted, essentially, in relation to one of his posts (see under (a) in paragraph 8 above). The impugned post merely contained information about the timing and the location for a gathering in relation to the topic being discussed in the forum section of an Internet site. In so far as the domestic law itself attached importance to a distinction between “informing” and “campaigning”, the Court is not convinced by the domestic courts’ finding that the mere indication of a date, time and location amounted to what should reasonably be foreseen to amount to “campaigning”.

26.  However, even assuming the applicant’s Internet post did call on people to participate in a specific public event and therefore amounted to premature “campaigning” by an event “organiser” in the meaning and in breach of the then section 10 of the Public Events Act (see paragraphs 16-17 above), the Court finds that his conviction violated his right to freedom of expression for the reasons stated below.

27.  Neither the Government nor the domestic courts in the present case explained what legitimate aim had been pursued by the authorities in convicting the applicant. In particular, it was not claimed that the public event in question presented a risk to public safety or was capable of leading to public disorder or crime. There is no indication how the aims of protecting national security, health or morals were pertinent.

28.  As regards the legitimate aim(s) pursued by the ban on campaigning prior to the authority’s approval of a public event, the Court held as follows (Elvira Dmitriyeva, cited above, § 83):

“83.  ... the purpose of the rules governing public events, and in particular the notification and approval procedure, is to allow the authorities to take all necessary measures to ensure the safety of both those attending the public event and others ... In its turn, the prohibition on campaigning for participation before the public event has been approved by the competent authorities aims at ensuring that citizens are not misled by calls to participate in a public event the location and time of which have not yet been finally determined ... Given that both the notification procedure for public events and the prohibition on campaigning for participation before that procedure has been successfully completed apparently aim at protecting the rights of others, the Court will assume that the applicant’s conviction for a breach of those procedures and rules also pursues the legitimate aim of protecting the rights of others.”

29.  The domestic law at the material time allowed “campaigning” as early as submission of notification to the competent authority of the planned event. It is questionable whether that the rationale of that rule was to ensure that citizens were not misled by calls to participate in a public event the location and time of which “[had] not yet been finally determined” (as in Elvira Dmitriyeva quoted above). However, arguably, prospective participants might be misled about the fact of whether a notification was pending before the competent authority that might or might not eventually approve an event as it was planned by its organiser. Thus, the Court is prepared to assume that a similar reasoning applies in the present case.

30.  In this context, the Court first considers that the breach of the procedure for organising public events (on account of premature pre-event campaigning in the present case) would hardly result in any interference with the rights of others. The Court also notes that the domestic courts did not take into account the settings of a forum discussion at an Internet site dedicated to various matters about cars, the overall context of the forum topic and related conversations, their content (see paragraphs 6 and 7 above), or the applicant’s involvement in that discussion (see paragraph 8 above), which, it appears, gave rise to a suggestion to express protest by way of a public event in front of the South Korean Consulate. That initial suggestion was followed up by a formal proposal the day after, when the local authority was notified of the proposed public event.

31.  There was no reason to believe that the event in question, although not yet notified and, a fortiori, approved by the competent local authority, would not be peaceful. Indeed, the Internet post in question did not contain any calls to commit violent, disorderly or otherwise unlawful acts during any eventual public event. The Court also observes that the approval of the public event in question was subsequently refused on formal grounds, rather than because it presented a risk of disorder or crime, or posed a risk to public safety or the rights of others.

32.  The applicant posted his messages, including the one for which he was subsequently prosecuted, in the context of a discussion about a news item relating to a criminal case in South Korea and its interrelated political and legal issues. The Court has no reason to doubt that the topic was a matter of public interest and that the applicant’s comments contributed to political debate, which, in the present case gave rise to the idea of engaging in expressive conduct by way of a public demonstration. The Court reiterates in this connection that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on expression on matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999‑IV) and strong reasons are required for justifying such restrictions (see Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001‑VIII). The Court further reiterates that it is important for the public authorities to show a certain degree of tolerance towards peaceful unlawful gatherings (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 143, 15 November 2018).

33.  It follows that the only actual aim of the applicant’s prosecution in the present case was the choice to punish unlawful conduct (see, in the same vein, Elvira Dmitriyeva, cited above, §§ 84 and 89). Given that the breach of the procedure for organising public events did not create any real risk of public disorder or crime, and had no potential to lead to or did not actually result in harmful consequences for public safety or the rights of others, that reason was insufficient to justify the applicant’s conviction for calling on people to participate in an event on a topical issue of public interest (see, for similar reasoning, Novikova and Others v. Russia, nos. 25501/70 and 4 others, § 199, 26 April 2016). In such circumstances, the Court is not convinced that the interference with the applicant’s right to freedom of expression was “necessary in a democratic society”.

34.  There has therefore been a violation of Article 10 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

36.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 10 of the Convention.

Done in English, and notified in writing on 9 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Helen Keller
Deputy Registrar                                                                       President